AG Ellison is not defending Minnesota’s abortion laws

Legal action was just announced by the Thomas More Society, which is asking to intervene in a lawsuit against the state of Minnesota brought by two anonymous abortion workers, a doctor and a “midwife,” and the First Unitarian Society of Minneapolis, a church that some say is loosely affiliated with Christianity. 

Keith Ellison

Legal action was just announced by the Thomas More Society, which is asking to intervene in a lawsuit against the state of Minnesota brought by two anonymous abortion workers, a doctor and a “midwife,” and the First Unitarian Society of Minneapolis, a church that some say is loosely affiliated with Christianity. 

The case is Dr. Jane Doe, et al., v. State of Minnesota, et al., and it asks that Minnesota laws—requiring a 24-hour waiting period for abortion, parental notification, and that fetal remains be buried or cremated (instead of being run down the disposal or thrown in the trash, as was commonplace without such laws)—be overturned by judicial fiat.

The two abortion workers and the Unitarian Society also seek to strike down a law requiring that abortions be performed by a licensed physician. 

The lawsuit’s legal theory is that the decisions of the democratically-elected legislature should be overturned, because of a newly-created right to uninhibited and uncontrolled abortion in the state constitution. The lawyers for the pro-abortion side are from Gender Justice and the Lawyering Project, two far-left legal organizations.

The Thomas More Society’s move to intervene, technically called a “Notice of Limited Intervention to Assert the Defense of Lack of Private Cause of Action,” comes because Democrat Attorney General Keith Ellison has failed to properly fight the abortionists’ lawsuit. But it is Ellison’s job to defend Minnesota and Minnesota law in lawsuits, because he’s the attorney general. 

Specifically, Ellison hasn’t asserted the defense of “Lack of Private Cause of Action” to stop the abortionists’ lawsuit from moving forward. 

What does this mean?  In order to bring a case against the government for violation of the Minnesota Constitution, there needs to be a specific statute authorizing the lawsuit against the government.  If there is none, there is no “private cause of action” to sue the government.  Barring lawsuits for violations of the Minnesota Constitution forces those issues to be debated in legislative bodies instead of being decided by the courts; the Minnesota Constitution is still useful when a citizen is prosecuted or sued by the government because the “private cause of action” defense does not apply under those circumstances.

The Thomas More Society is arguing that Ellison didn’t assert the defense of lack of private cause of action but should have.  For example, in one of Mr. Kaardal’s cases, the citizen-plaintiff sued a township for violating the Minnesota Constitution. The courts dismissed the case for lack of a private cause of action to sue the government.  Kaardal states, “The same defense is available to the Attorney General in this abortion case, but he won’t assert it even though his office has done so successfully, recently, in multiple cases.  The result of the Attorney General’s flip-flopping is government lawyers deny courthouse access to ordinary citizens, but, then, turn around, and grant courthouse access to elite, out-of-state, liberals promoting abortion rights.”

There’s also the issue, where, as a matter of law, the lawsuit should be scrapped. 

It’s true that Medicaid, federally funded by supplemented by the states, covers abortion in Minnesota via a 1995 court-order (which should be heavily targeted by pro-lifers). But there is no right to unrestricted abortion in Minnesota. 

The same is true on the federal level, where even though Roe vs. Wade found a “constitutional right” to abortion, and said that state’s couldn’t regulate abortion until the third trimester, Planned Parenthood vs. Casey later allowed states to enact common-sense abortion legislation and regulation—including parental notification rules, and rules requiring a physician to perform abortions. 

There’s no telling what will happen next, but it is very interesting that the pro-choice crowd can historically only get their agenda through the courts, and not the people’s legislature. Only time will tell if this strategy will be successful this time around, but the pro-choice Keith Ellison appears to hope that it will be.

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